Wednesday, February 12, 2014Last Update: 12:57 PM PT

Teen's Sentence Won't Go Before En Banc Circuit

(CN) - With seven judges complaining about the creation of a circuit split, the 9th Circuit refused Wednesday to disturb the reversal of a teenager's 254-year prison sentence. Roosevelt Brian Moore was 16 years old when he sexually victimized four women in 1991. He was found guilty of 24 counts, including nine counts of forcible rape, seven counts of forcible oral copulation and two counts of second-degree robbery. Sentenced to 254 years and four months in prison, Moore would not have been eligible for parole until after he served half that time. Some 20 years later, Moore argued in a habeas petition that his sentence was illegal in light of the high court's ruling in Graham, which prohibits a sentence of life for juvenile offenders convicted of "nonhomicide crimes." The Los Angeles Superior Court and the California Supreme Court shot down the petition, however, as did the California Court of Appeal. Though a federal judge also shot Moore down, he found success this summer in the 9th Circuit with a reversal from a three-judge panel. Retroactively applying the Supreme Court's 2010 ruling in Graham v. Florida, the judges said Moore's sentence improperly amounted to life with parole. In a brief order published Wednesday, the appeals court refused to consider the issue before a 11-judge, en banc review panel, prompting a vehement dissent from Judge Diarmuid O'Scannlain that was joined by Judges Richard Tallman, Jay Bybee, Consuelo Callahan, Carlos Bea, Milan Smith and Sandra Ikuta. The issue should face the en banc court because the panel ruling contravenes the Antiterrorism and Effective Death Penalty Act (AEDPA) and creates a circuit split, O'Scannlain argued. He noted that Moore's sentence is not one long sentence but actually more than two dozen separate sentences of eight years or less. In Graham, the Supreme Court "did not clearly establish that consecutive, fixed-term sentences for juveniles who commit multiple nonhomicide offenses are unconstitutional when they amount to the practical equivalent of life without parole," the dissent states, quoting from the 6th Circuit's ruling in 2012's Bunch v. Smith. "Respect for the California courts, for our sister circuit, and for courts across the country that have declined to apply Graham to sentences such as Moore's should have compelled the panel to declare the reasons why it found their analysis unpersuasive," O'Scannlain wrote. "Instead, the panel's opinion ignores their arguments." He added: "Because the panel's opinion defies AEDPA, creates a circuit split, and threatens frequent and unjustified intrusions into state sovereignty, I respectfully dissent from our court's regrettable failure to rehear this case en banc."